2018 was a busy year in New Jersey with the passage of sweeping legislation affecting employers of all sizes across the state. In light of the explosion of employment litigation in New Jersey over the past decade, employees have an increased and acute awareness of their rights in the workplace. Now more than ever, it is essential to have an up-to-date Employee Handbook so that employers can be armed with policies to defend such claims. As we ring in the new year, employers should examine their current handbooks to update their policies and implement new ones to comply with the Top Three new laws passed in 2018 outlined below.
1) Equal Pay Act: The Diane B. Allen Equal Pay Act amended the New Jersey Law Against Discrimination (NJLAD) to make it illegal for an employer to pay any employees who are members of a protected class recognized under the NJLAD at a lower compensation than other employees who are not members of a protected class, for “substantially similar work,” unless a pay differential is justified by legitimate business necessity. Under the NJLAD, protected classes include race, creed, sex, color, national origin, ancestry, nationality, disability, age, pregnancy or breastfeeding, marital, civil union or domestic partnership status, affectional or sexual orientation, gender identity or expression, military status, and genetic information or atypical hereditary cellular or blood traits. “Substantially similar work” is determined by a combination of the “skill, effort and responsibility” required for that position and is not limited to employees who work within a specific geographic area or region.
2) Paid Sick Leave: The New Jersey Paid Sick Leave Act, which preempts all local sick leave laws, affects all employers in New Jersey, regardless of size. As of October 29, 2018, employers are now required to provide 40 hours of paid sick leave for full-time, part-time, casual, and seasonal employees in each benefit year. Employers are permitted to choose whether they want their employees to accrue the time, or “front-load” the maximum 40 hours of paid sick leave at the beginning of the benefit year. Employers are also permitted to designate the “benefit year” as any 12-month period but may not modify it without notifying the New Jersey Department of Labor and Workforce Development (NJDOL). Employees covered by a Collective Bargaining Agreement (CBA) as of October 29, 2018 are not affected until the current CBA expires. Employees and their representatives however may waive the rights available under the law and address paid leave in collective bargaining.
Employees may use paid sick leave for (a) the diagnosis, care, treatment, recovery and/or preventive care for the employee’s own mental or physical illness or injury or the employee’s family member’s mental or physical illness or injury; (b) absence due to a public health emergency declared by a public official that causes the closure of the employee’s workplace or the school or childcare facility of the employee’s child or requires the employee or an employee’s family member to seek care; (c) a necessary absence for medical, legal or other victim services because of domestic or sexual violence perpetrated on the employee or the employee’s family member; or (d) to attend a school-conferences, meetings, or any event requested or required by a child’s school administrator, teacher, or other professional staff member responsible for the child’s education, or to attend a meeting regarding a child’s health or disability.
3) Protections for Nursing Mothers: The NJLAD was also amended to require all New Jersey employers, regardless of size, to provide lactation breaks to nursing mothers in the workplace. Employers must also reasonably accommodate employees with daily break times and a suitable room or other location so that employees can express breast milk in private. The room also must be in close proximity to the employee’s working area. However, employers are not required to compensate employees for the break time unless the employee is already compensated for breaks. New Jersey employers must also be aware that the NJLAD does not restrict the time period for breaks. In addition, while the Fair Labor Standards Act requires that employers allow this accommodation for up to a year after the child’s birth, the NJLAD amendment does not include any such time restriction. It is also illegal to terminate or discriminate against a female employee who breastfeeds or pumps milk on the job. Thus, employers need to shore up all policies related to employees returning from maternity leave who require space for lactation purposes.
Because the laws are ever-changing, to ensure your handbook is in compliance with the latest federal and state laws and regulations, it is imperative that employers conduct an annual review of their handbook and policies. Reviewing the company’s policies annually with legal counsel is essential to determine whether existing policies should be revised, new policies should be implemented or whether outdated policies should be eliminated. The cost is minimal compared to the cost of defending against a charge brought by the U.S. Equal Employment Opportunity Commission, the New Jersey Division on Civil Rights or worse, the cost of defending a lawsuit.